This Petition for Review from the October 14, 1999 Finding of the Commissioner acting for the Seventh District was heard January 12, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Jesse M. Frankl.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the October 14, 1999 Finding of the Commissioner acting for the Seventh District. He maintains on appeal that the trier erred in the calculation of his § 31-308a benefit rate insofar as he factored the claimant’s disability retirement benefits into his weekly earnings. We affirm the trial commissioner’s decision with respect to this issue, though we remand for recalculation in light of a less significant discrepancy.1

The parties stipulated that the claimant sustained compensable injuries to his lumbar and cervical spine on October 6, 1989, for which he received between 100 and 110 weeks of permanent partial disability benefits. At the time of the formal hearing, he had also received approximately 123 weeks of benefits pursuant to § 31-308a.2 The claimant’s treating physician reported that his patient had sustained a 30% permanent loss of use of his cervical spine, and a 20% permanent loss of use of his lumbar spine. As of June 11, 1990, he was deemed fit for light work only. The parties stipulated that the claimant could not return to his usual employment with the state following his injury. As a result, he was awarded a State of Connecticut Retirement Disability Pension. This provides him with a gross sum of approximately $1,700.00 per month, which amounts to about $1,291.00 per month—and $297.92 per week—after taxes have been deducted.

The claimant is now employed as a sales associate for Michael’s Jewelers, but can only work part-time due to the limited durability of his back and neck. He earned an average of $176.91 per week during the calendar year 1999. The parties agree that the claimant averaged earnings of $445.40 per week at the time of his injury, and that his weekly compensation rate was $296.49. If he had continued to work for the state in the same capacity, his present salary would be $686.00 per week. The trial commissioner determined that the claimant was entitled to 46 additional weeks of § 31-308a benefits based upon the factors listed in the statute, and ordered the respondent to pay the claimant such compensation at the rate of $140.78 per week. The claimant has filed an appeal with this board, seeking review of that weekly compensation amount.

The $140.78 weekly figure was calculated as follows. The trial commissioner added together the $297.92 per week pension that the claimant receives from the state and the $176.91 per week he earns from the jewelry store, arriving at the sum of $474.83. He then subtracted that amount from the $686.00 per week that the claimant would have been earning had his employment with the respondent continued, leaving a remainder of $211.17. Two-thirds of $211.17 rounds off to $140.78, which is the amount awarded here. The claimant asserts on appeal that this method of calculation was wrong because the trier should not have included the $297.92 weekly pension in his current wages under § 31-308a. In his view, the award should have been $339.39 per week, representing two-thirds of the difference between $686.00 and $176.91.

First, we observe that a claimant’s benefit rate under § 31-308a may not exceed sixty-six and two-thirds percent of a claimant’s average weekly earnings at the time of his injury (the claimant’s base weekly compensation rate). Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (Feb. 5, 1990). The claimant’s weekly compensation rate therefore cannot exceed $296.49, even if one disregards his retirement disability pension while assessing his current earnings. However, we are not persuaded by the claimant’s argument that his pension should be so excluded in this case. In resolving this issue, we will ignore the fact that the trier would normally be aware of the claimant’s prospective compensation rate when setting the term of a § 31-308a award, which is purely discretionary, and need not be of any set length, if such an award is provided at all.3

Both § 31-308a and its mandatory counterpart for temporary partial disability benefits, § 31-308(a), base their calculations of a claimant’s entitlement to wage differential benefits upon a percentage of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, and the amount that the injured employee is (or probably will be) “able to earn” after the injury. We have generally stated that the concept relevant to Chapter 568 considerations is an employee’s diminished physical capacity. See Foss v. Continental Forest Industries, 5 Conn. Workers’ Comp. Rev. Op. 1, 3, 341 CRD-6-84 (March 9, 1988) (unemployment benefit rate could not be adopted as claimant’s post-injury earning capacity, as the amount is set by statute and was unrelated to claimant’s physical limitations). We have also observed that the definition of “earnings” is broader than that of “wages” (which refers to compensation paid to employees) as per Black’s Law Dictionary, 5th Edition, describing “the gains of a person derived from his services or labor without the aid of capital; money or property gained or merited by labor, service, or the performance of something.” Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000). Thus, in assessing whether an income source should be incorporated into what a claimant is “able to earn,” a factfinder would normally need to decide whether the income in question reflects a work capacity on the part of the claimant. Id.; see also, Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999) (private cleaning business that was outside Act for purposes of “concurrent employment” under § 31-310 might still provide earnings to claimant under § 31-308(a)).

It is not always appropriate to call upon the same analytical tool in every instance, however. This includes the method for determining the relevance of outside income to one’s ability to earn a living under the Workers’ Compensation Act. The overriding purpose of § 31-308(a) and § 31-308a is to compensate claimants for temporary (or possibly permanent) reductions in weekly pay that have been caused by one’s compensable injury. Rodrigues, supra. In this instance, the claimant (who was born in 1955) is receiving a retirement disability pension from his former employer on account of his compensable injury and his resultant inability to continue in state service. Had he not been injured, he would not be receiving this pension from his former employer. Further, § 31-314 provides, “In fixing the amount of any compensation under this chapter, due allowance shall be made for any sum which the employer has paid to any injured employee or to his dependents on account of the injury . . . .” The employer here is paying the claimant a considerable pension on account of his injury.

We would be remiss if we were to ignore that the wage replacement benefits sought here by the claimant are meant to replenish a former income source (his job with the state) that is already being replenished in part by a pension from that same entity. Therefore, the fact that the pension does not reflect a work capacity on the part of the claimant is not the only logical consideration here. We must look at the entire picture in this context, which is the purpose of workers’ compensation and wage differential benefits. If the claimant were to collect this pension in addition to the full difference (or two-thirds of the difference) between the wages he would have been earning but for the injury and the wages he is in fact able to earn from his job at the jewelry store, he would likely be taking home more money per week than he would have if he had never been injured at all. There is little chance that the legislature would have envisioned such a result in a compensation case. Compare Carriero v. Naugatuck, 243 Conn. 747, 757 (1998) (explaining that intent of § 7-433b benefit ceiling was to limit total payments to retired municipal police officer to the amount being paid to his working counterpart). Accordingly, we believe that the trial commissioner made a fair and reasonable decision by including the claimant’s state disability pension in the “amount he is able to earn” under § 31-308a, on the bases of statutory construction and policy alike.

There is a small error in the trier’s benefit calculation that became apparent to this board during the course of our review. The operative version of § 31-308a in this case directs the trial commissioner to compare the gross wages earned by an employee in a position comparable to the one held by the claimant before his injury to the gross amount that the claimant will probably be able to earn thereafter (the statute did not look at after-tax earnings until 1991). Yet, in adding the claimant’s state disability pension to his earnings, the trier appears to have used the net amount that he receives ($1,291 per month) rather than the gross amount of the pension ($1,700 per month). Findings, ¶¶ 7, E. It appears to us that the use of the net pension proceeds is inconsistent with the “gross earnings” formula used in the applicable version of § 31-308a. Thus, we remand this matter to the trial commissioner for recalculation of the claimant’s benefit rate.

The trial commissioner’s decision is hereby affirmed in part, and reversed for the purpose of allowing a benefit recalculation as per the final paragraph of our decision.

Commissioners Ernie R. Walker and Jesse M. Frankl concur.

1 The respondent also filed a petition for review from the trier’s Finding. This document was received by this commission on November 1, 1999, and was characterized as a cross-appeal by the respondent. In Iannarone v. State/Dept. of Mental Retardation, 4138 CRB-7-99-10 (Aug. 4, 2000), a CRB panel dismissed the respondent’s cross-appeal on the ground that it was not properly filed within ten days of the date notice of the commissioner’s decision was sent to the parties, as required by § 31-301(a) C.G.S. BACK TO TEXT

2 At the time of the claimant’s injury, § 31-308a read as follows: “In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner.” BACK TO TEXT

3 We remind the reader that § 31-308a did not begin limiting the duration of additional compensation awards to the lesser of (1) the duration of the claimant’s permanency benefits or (2) 520 weeks until July 1, 1993. This provision does not apply to cases based upon injuries that occurred before that date. Pontoriero v. Sanzo Concrete Construction, Inc., 3492 CRB-4-96-12 (March 6, 1998). BACK TO TEXT